Treat v. Hiles

• Decision Date: 15 December 1891
• Citation: 81 Wis. 280,50 N.W. 896
• Parties: TREAT ET AL. v. HILES.
• Court: Wisconsin Supreme Court

81 Wis. 280

50 N.W. 896

TREAT ET AL.

v.HILES.

Supreme Court of Wisconsin.

Dec. 15, 1891.

Appeal from circuit court, Waukesha county; A. SCOTT SLOAN, Judge.

Action by Curtiss M. Treat and Melvin A. Hoyt against George Hiles to recover damages for breach of contract. Plaintiffs obtained judgment. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by LYON, J.:

This action was brought by Treat and Hoyt against Hiles to recover damages for the breach of an alleged contract between the parties to open and work a certain stone quarry on joint account. The case was here in 1887, on an appeal from an order sustaining a general demurrer to the complaint, and is reported in 68 Wis. 344, 32 N. W. Rep. 517. The opinion by Mr. Justice ORTON contains a statement of the alleged contract, as set out in the complaint, to which should be added that it is further averred in the complaint that the contract was to continue “so long as said quarry might last, and so long as any profit might or could be realized thereupon.” It was held on such appeal that the complaint states a cause of action. After the cause had been remitted to the circuit court, the defendant answered, substantially, a general denial. The cause was tried, and a special verdict returned therein, consisting of answers to 53 questions of fact submitted to the jury. The circuit court modified some of the findings, and awarded a new trial of the question of damages alone, the jury having assessed the same at $1,000, which the court disapproved. An appeal from the order in that behalf resulted in the reversal of the order, and the circuit court was directed to grant a new trial of all the issues upon request of either party. 75 Wis. 265, 44 N. W. Rep. 1088. The cause has been again tried, and on such trial the jury returned a special verdict in the form of questions and answers as follows: “(1) Did the defendant, in the fall of 1885, agree with plaintiffs to purchase the Saunders farm, and take the title thereto in his own name, and to advance such moneys as might be required to pay for the same, not exceeding $12,000, and such moneys as might thereafter be required to open and develop the quarry on said farm, if, upon examination of the property with the plaintiffs, he (Hiles) was satisfied with its appearance, and would give the plaintiffs one-half of the net profits so long as the quarry could be profitably worked? Yes. (2) Was there any other condition in the contract than that embraced in the last question? Yes. (3) If you answer the last question in the affirmative, was that condition that defendant should test the quarry and be satisfied? No. (4) How many cords of stone are there in the 22 acres of land adjacent to the place where the quarry is being worked, computed from the present level of the ground to the top of the hill? Not less than 50,000 cords. (5) How far below the level of the ground under said 22 acres does the stone extend? Not less than twenty feet. (6) What proportion of the stone is merchantable? One-half. (7) Can this quarry be worked at a profit? Yes. (8) What would be the average expense per cord to quarry and load upon the cars the different varieties of the stone in this quarry? $10.82. (9) What would be the average net profit per cord on the different varieties of stone in said quarry delivered at Milwaukee? $11.22. (10) How much at Chicago? $14.50. (11) Has said quarry been worked at a profit for the past three years? Yes. (12) At what sum do you assess the damages of the plaintiffs? $20,000.” The court denied a motion of defendant for a new trial, and the motion of plaintiffs for judgment for a much larger sum than was so assessed, and ordered judgment for plaintiffs for $20,000 pursuant to the verdict. Judgment was entered accordingly, from which the defendant appeals to this court.N. S. Murphey, for plaintiffs.

In an action for breach of contract to do certain work, or for the delivery of certain property, the rule of damages is the net profits which plaintiffs would have made on the contract if it had not been broken by defendant. Flick v. Wetherbee, 20 Wis. 392;Salvo v. Duncan, 49 Wis. 151, 4 N. W. Rep. 1074;Nilson v. Morse, 52 Wis. 240, 9 N. W. Rep. 1;Cockburn v. Lumber Co., 54 Wis. 619, 12 N. W. Rep. 49;Hill v. Palmer, 56 Wis. 123, 13 N. W. Rep. 20;Nash v. Hoxie, 59 Wis. 384, 18 N. W. Rep. 408;Jones v. Foster, 67 Wis. 296, 30 N. W. Rep. 697;Treat v. Hiles, 68 Wis. 344, 32 N. W. Rep. 517;Poposkey v. Munkwitz, 68 Wis. 330, 32 N. W. Rep. 35;Cameron v. White, 74 Wis. 425, 43 N. W. Rep. 155;Chapman v. Ingram, 30 Wis. 290;U. S. v. Behan, 110 U. S. 343, 4 Sup. Ct. Rep. 81, and authorities there cited; Wakeman v. Manufacturing Co., 101 N. Y. 205, 4 N. E. Rep. 264; Bagley v. Smith, 10 N. Y. 489;Taylor v. Bradley, 39 N. Y. 129;Dennis v. Maxfield, 10 Allen, 138; Simpson v. Railroad Co., 1 Q. B. Div. 274; Jaques v. Millar, 6 Ch. Div. 153; White v. Miller, 7 Hun. 427, 71 N. Y. 118, 78 N. Y. 393; Mitchell v. Read, 84 N. Y. 556;Danolds v. State, 89 N. Y. 36; Hoy v. Gronoble, 34 Pa. St. 9; Garsed v. Turner, 71 Pa. St. 56; McNeill v. Reid, 9 Bing. 68; Fletcher v. Tayleur, 17 C. B. 21; Hewitt v. Lumber Co., 77 Wis. 548, 46 N. W. Rep. 822;Masterton v. Mayor, etc., 7 Hill, 61;Taylor v. Bradley, 4 Abb. Dec. 363;Schell v. Plumb, 55 N. Y. 592;Etherington v. Railroad Co., 88 N. Y. 641;Houghkirk v. Canal Co., 92 N. Y. 219;Manufacturing Co. v. Holbrook, 118 N. Y. 586, 23 N. E. Rep. 908; Dart v. Laimbeer, 107 N. Y. 664-669, 14 N. E. Rep. 291; Reed v. McConnell, 101 N. Y. 276, 4 N. E. Rep. 718; Fox v. Harding, 7 Cush. 516;Blair v. Laflin, 127 Mass. 518;Morgan v. Hefler, 68 Me. 131, and Myers v. Railroad Co., 2 Curt. 28; Railroad Co. v. Howard, 13 How. 307-344; 1 Suth. Dam. 113; Shepardson v. Cary, 29 Wis. 34; Pfennig v. Griffith, Id. 622; Fire Department v. Tuttle, 50 Wis. 552, 7 N. W. Rep. 549;Baker v. Baker, 57 Wis. 390, 15 N. W. Rep. 425, and authorities; 5 Amer. & Eng. Enc. Law, p. 82, and authorities cited; Passinger v. Thorburn, 34 N. Y. 634;Jones v. George, 61 Tex. 345, and authorities; Shepard v. Gas-Light Co., 15 Wis. 318-329;Richardson v. Chynoweth, 26 Wis. 659;Hammer v. Schoenfelder, 47 Wis. 459, 2 N. W. Rep. 1129. The rule of damages is one the court must control, unless its application cannot be made without settling disputed questions of fact, in which case the jury may be directed to apply it with respect to alternative findings. Railroad Co. v. Stout, 17 Wall. 657;Bernhard v. Railroad Co., 1 Abb. Dec. 131;Dyer v. Railroad Co., 71 N. Y. 230;Payne v. Railroad Co., 83 N. Y. 574;Massoth v. Canal Co., 64 N. Y. 529;Weber v. Railroad Co., 58 N. Y. 451;Dennis v. Maxfield, 10 Allen, 142.

John W. Cary, ( Rose & Bell, of counsel,) for defendant.

Contingent and uncertain damages are not recoverable. Taylor v. Bradley, 4 Abb. Dec. 363;Rhodes v. Baird, 16 Ohio St. 580;Bergen v. City of New Orleans, 35 La. Ann. 523;Jones v. Nathrop, 7 Colo. 1, 1 Pac. Rep. 435;Machine Co. v. Bryson, 44 Iowa, 159;White v. Miller, 71 N. Y. 133; Hadley v. Baxendale, 9 Exch. 341; Coal Co. v. Foster, 59 Pa. St. 365; Express Co. v. Egbert, 36 Pa. St. 364; Alexander v. Bishop, (Iowa,) 13 N. W. Rep. 717;U. S. v. Behan, 110 U. S. 345, 4 Sup. Ct. Rep. 81;Royalton v. Turnpike Co., 14 Vt. 324; Wolcott v. Mount, 36 N. J. Law, 262; McAndrews v. Tippett, 39 N. J. Law, 111; Richmond v. Railroad Co., 40 Iowa, 273, 33 Iowa, 486; McHose v. Fulmer, 73 Pa. St. St. 365; Hubbard v. Rowell, 51 Conn. 423;Masterton v. Mayor, etc., 7 Hill, 61;Atkinson v. Morse, (Mich.) 29 N. W. Rep. 713;Petrie v. Lane, (Mich.) 25 N. W. Rep. 504; Prior v. Wilson, 8 Wkly. Rep. 260; Booth v. Rolling-Mill Co., 60 N. Y. 493;Nilson v. Morse, 52 Wis. 255, 9 N. W. Rep. 1;Nash v. Hoxie, 59 Wis. 384, 18 N. W. Rep. 408;Jones v. Call, 96 N. C. 337, 2 S. E. Rep. 647; 2 Wait, Act. & Def. 454; Allis v. McLean, (Mich.) 12 N. W. Rep. 642;Howard v. Manufacturing Co., 139 U. S. 199, 11 Sup. Ct. Rep. 500;Bean v. Carleton, (Sup.) 12 N. Y. Supp. 520;Abbott v. Gatch, 13 Md. 315; Coal Co. v. Foster, 59 Pa. St. 365; Green v. Williams, 45 Ill. 206;Olmstead v. Burke, 25 Ill. 86;Taylor v. Maguire, 13 Mo. 517;Giles v. O'Toole, 4 Barb. 261; Wilson v. Railway Co., 9 C. B. (N. S.) 632; Frazer v. Smith, 60 Ill. 147;Machine Co. v. Bryson, 44 Iowa, 159;Griffin v. Colver, 16 N. Y. 489;Newbrough v. Walker, 8 Grat. 16;Appeal of Rankin, (Pa. Sup.) 16 Atl. Rep. 88;Manufacturing Co. v. Rogers, 19 Ga. 416. See, also, Oldham v. Kerchner, 79 N. C. 106;Bridges v. Lanham, 14 Neb. 369, 15 N. W. Rep. 704;Freeman v. Clute, 3 Barb. 426; Rogers v. Bemus, 69 Pa. St. 432; Skinner v. Tinker, 34 Barb. 333;Brigham v. Carlisle, 78 Ala. 243;Culver v. Hill, 68 Ala. 66;Burton v. Holley, 29 Ala 318;Higgins v. Mansfield, 62 Ala. 267;White v. Miller, 71 N. Y. 133;Muldrow v. Norris, 2 Cal. 74;Yonge v. Steam-Ship Co., 1 Cal. 353;Stern v. Rosenheim, (Md.) 10 Atl. Rep. 221;Beck v. West, (Ala.) 6 South. Rep. 70;Poposky v. Munkwitz, 68 Wis. 335, 32 N. W. Rep. 35;Chapman v. Kirby, 49 Ill. 211;Green v. Williams, 45 Ill. 206;Shepard v. Gas-Light Co., 15 Wis. 329;Gates v. Railway Co., 64 Wis. 71, 24 N. W. Rep. 494;Kenny v. Collier, (Ga.) 8 S. E. Rep. 60;Red v. City Council of Augusta, 25 Ga. 386;Giles v. O'Toole, 4 Barb. 261;Townsend v. Wharf Co., 117 Mass. 503;Green v. Williams, 45 Ill. 208;Dorwin v. Potter, 5 Denio, 306;Rawson v. Pratt, 91 Ind. 9;Road Co. v. Cox, 39 Ind. 260;Blair v. Kilpatrick, 40 Ind. 312;City of Terre Haute v. Hudnut, 112 Ind. 542, 13 N. E. Rep. 686.

LYON, J., ( after stating the facts.)

The testimony is very voluminous, filling (including exhibits) nearly 500 pages of the printed case. It is not materially different from the testimony given on the former trial. Much of it is the same. It cannot reasonably be expected that we should make any extended statement or go into any analysis or elaborate discussion of it. It has been examined with care, and it must suffice that its scope and character are herein stated...